January 17, 2014

After Obama NSA Speech, Spotlight on Congress

Lawmakers, civil rights advocates and tech companies shared a basic response to President Barack Obama's surveillance reforms: Good first step, but there's more to be done.

Congress needs to take action to address concerns about the scope of surveillance programs, Obama said. Much of the reaction focused on proposed changes to the most controversial program—the bulk collection of telephone records by the National Security Agency under Section 215 of the USA Patriot Act.

Obama also called for greater transparency when it comes to the secretive Foreign Intelligence Surveillance Court, which oversees NSA surveillance efforts.

A group of tech companies that are pushing for reforms—including Apple, Facebook, Microsoft Corp., Twitter, Yahoo! and AOL—issued a joint statement after Obama's speech. Several of the companies last year filed petitions in the surveillance court seeking the ability to provide more information about government demands for consumer data.

"The commitments outlined by President Obama represent positive progress on key issues including transparency from the government and in what companies will be allowed to disclose, extending privacy protections to non-US citizens, and FISA court reform," the companies wrote.

"Crucial details remain to be addressed on these issues, and additional steps are needed on other important issues, so we'll continue to work with the Administration and Congress to keep the momentum going and advocate for reforms consistent with the principles we outlined in December."

Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee and a proponent of NSA reform, said he was encouraged that Obama embraced "the growing consensus that the Section 215 phone records program should not continue in its current form."

Leahy said he would work with the administration as it develops alternatives to the government control of the phone record database, such as either the service providers themselves or a third party. The database contains millions of records of Americans’ calls.

"The President has ordered some significant changes, but more are needed," Leahy said. "Section 215 must still be amended, legislatively, to ensure it is not used for dragnet surveillance in the future, and we must fight to create an effective, institutional advocate at the FISA court."

House Judiciary Committee Chairman Rep. Bob Goodlatte (R-Va.) said the bulk telephone data collection program is in need of significant reform. He said his committee would hold hearings on surveillance issues, including where the phone database would be stored.

"While I agree that the government storage of this information is one real concern that needs to be addressed, there are many others," Goodlatte said. "In addition, third party storage itself is a very difficult proposal that raises additional concerns."

Anthony Romero, the executive director of the American Civil Liberties Union, said the group welcomed Obama's call for reform—to a point.

"However, the president’s decision not to end bulk collection and retention of all Americans’ data remains highly troubling," Romero said. "The president outlined a process to study the issue further and appears open to alternatives. But the president should end—not mend—the government’s collection and retention of all law-abiding Americans’ data."

Orin Kerr, a Fourth Amendment scholar who teaches at George Washington University Law School, raised questions about the constitutionality of one of Obama's proposed changes.

"That is, he will ask the judiciary to take on a new power to limit the Executive, so that the Executive can only query the database when the executive gets a court order signed by the FISC," Kerr wrote. "Maybe I’m just old-fashioned, but doesn’t Congress need to be involved in this little enterprise? The FISC is a creation of Congress. It has no power to do anything that Congress doesn't grant it."

Sen. Rand Paul (R-Ky.), one of the surveillance programs most vocal critics on Capitol Hill, said Obama left in place a system that violates the Fourth Amendment protection against unreasonable search and seizure. Paul has said he plans to file a class action against the Obama administration over the program.

"This is something that’s going to have to be decided by the Supreme Court," Paul said on CNN right after Obama’s speech. "I think there's a real fundamental question whether one general warrant can apply to millions of people’s records."

Norman Reimer, executive director of the National Association of Criminal Defense Lawyers, criticized Obama for making "smaller changes rather than a complete overhaul of the program."

"While it is a step in the right direction to recommend ending direct government collection of this metadata and to provide back-end protections on searching the information, the President should have supported ending the program altogether," Reimer said in a statement.